86 FEDERAL REPORTER.
convenient interchange of traffic between its line and the respondents' lines, or to hinder the prompt dispatch thereof foits respective destination; at the reasonable rates therefor, which the respondents dem.aIidand receive from all persons not connected with them by their contract arrangement for through routing, billing, and rating. It therefore is manifest that the circuit court has no power to grant the relief asked, unless it has power to command that the respondents shall contract with the complainant for such through routing, billing, and rating; and, not only so, but shall contract with the complainant therefor on the same terms that they have contracted with the Mallory Line. All the reasons which have prevailed with congress to with40ld this power from the interstate commerce commission, and many additional reasorlswith strongest force, forbid that the numerous circuit courts should, in advance of legislative action, take jurisdiction, and by mandatory injunction compel such tIl rough routing, billing, and rating. . We conclude that the seYera1 arrangements effected between the Mallory Line and the defendant railway companies are not violative of the common law; that the case attempted to be made in the appellee's bill of complaint in the circuit court cannot be maintained the interstate commerce act; that the statutes of Texa§ relied upon do not and cannot apply to interstate commerce; and that the bill does not present such a case as the circuit court has jurisdiction to relieve by 'mandatory injunction, either under the antitrust act. or under its general jurisdiction as a court of equity. From these conclusions it results that the decree of the circuit court must be reversed. It is therefore ordered that the order of the circuit court granting an injunction pendente lite be, and the same is hereby, reversed; and the injunction dissolved, and this cause is remanded, with instructions to thereinafter proceed in accordance with the views expressed in this opinion, and as equity may require.
SOUTHERN RY. CO. v. RHODES. (CIrcuit Court of Appeals, SIxth Circuit. AprIl 5, 1898.)
Where It 1$ the practice of the post-office employlls to tllrow mall pouches from moving traIns onto passenger station platforms, so as to endanger passengers, It Is the duty of the railroad company to notify passengers of . the danger, and take such further steps as may be necessary to prevent the continuance of the practice; but this duty does not arise until the railroad company has had notice of such practice, either express, or Implied from Its long continuance. .
ApPEAL-PART OF RECORD LOST.
RAILROADS-NEGLIGENeJE-THROWING MAIL POUCH FROM MOVING TRAIN.
Where, by reason of the accidental destruction of part of the record, It Is uncertain on the appeal what action had been taken un a demurrer, and whether the defendant ever ,tiled any plea, but it appears that the parties proceeded tofrlal on the merits withoutobjectlon,the appellate court will assume that the demurrer was waIved, and proceed on the assumption that the case was tried on the general Issue, where the conduct of the parties is such as to render that ,course, in order to do justice between them. ' , , .
In Error to the Circuit Court of the United States for the Southern Division of the Eastern District of Tennessee. Leon Joroulmon, for plaintiff in error. W. H. Payne, for defendant in error. Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.
SEVERENS, District Judge. This was an action brought by G. W. Rhodes, the defendant in error, against the Southern Railway Company, the plaintiff in error, to recover damages for personal injuries sustained by him through the alleged negligence of the railway company. The declaration alleged, in substance, that the plaintiff, on or about the 24th day of November, 1895, had purchased a ticket of the defendc ant's agent at Sherman Heights, in Hamilton county, Tenn., for passage to Charleston, a station on the defendant's road in the same state, and was in the depot at Sherman Heights, awaiting the arrival of his train; that he was notified by the ticket agent that the train would be due in a short time; that while so waiting he heard a train approaching, which he supposed was the one by which he intended to take passage, but was in fact one running in the opposite direction, and went out of the station, upon the platform in front, for the purpose of getting on board; that directly after he passed out of the door upon the platform, and while standing upon the platform, the train which he had Mard (a passenger train upon the defendant's road) approached and passed said station, running at a rapid rate of speed, from which a mail pouch, containing mail, was thrown, and struck the plaintiff with great violence, knocking him down, and rendering him insensible for a considerable time, cutting and bruising his body and injuring his spine, in consequence of which he was for a long time disabled from doing any kind of work, and has been obliged to expend considerable money for medical attention, nursing, etc. The declaration further alleged that it had been the custom and rule at that station, long prior to the injury received by him, for the mail pouch to be thrown from the defendant's train at the point where it was thrown on that occasion, and that the defendant and its officers had notice of this custom; but that, notwithstanding such notice, the defendant had given no notice to the plaintiff of such custom, or of the danger of injury therefrom, and had not posted any notice thereof at that station or elsewhere, and also alleged that the plaintiff had no knowledge of such practice. The case was originally brought in the state circuit court for Hamilton county, Tenn. The case was removed, on petition of the defendant below, into the circuit court of the United States for the Southern division of the Eastern district of Tennessee, where the defendant filed a demurrer to the plaintiff's declaration, upon several grounds, the first and second of which are as follows:
"(1) Said declaration does not show any cause of action against defendant. (2) Said declaration shows that the injuries complained of ",'ere caused by the act of the mail clerk. and not by the act of tbe defendant, or any servant or agent of tbe defendant,"
Nothing appears in the record to show what the action of the court was upon this demurrer, or that any plea was ever filed by the defend-
ant; but the case was tried in April, 1897, before the court and a jury. A part of the files and record was destroyed by fire, and the parties undel1:ook to supply the .loss by copies stipulated to be filed in lieu of the originals. No question was raised ,during, the progress o(the Jrial in respect of the ,pleadings, and it appears. to have been assumed that the case was being tried upon an issue presented by a denial of the matters alleged in the declaration. The jury returned a .verdictfor the plaintiff for, $2,200. The defenda)ft moved for a upon.the condition that the plaintiff remit new trial, which was a;nd thereupon judgfrom the verdict the sum of $800, which was ment was entered for the sum of $1,400. The defendant. reserved certainexceptions to the rulings of the court duriug the progress of the the case here for review upon a bill of exceptions. trial, and We have found some embarrassment in dealing with the case, on account of the uncertainty of.the condition of the plelldings at the time the trial in the court below; but having regard to the circumstance of the aGcidenta,J destruction of part of the record, from which it may inferred that the record at one time may have been more complete than the copies supplied shOW it to have been, and the evident fact that the parties intended to .bridge any chasm in the pleadings by proceeding to trial of the merits upon a general denial of the declaration,.,.....,.apd no error is now assiglJ;ed in respect to that feature of the case,-,.-we think. it right to treat .the case upon the assumption that it was upon the general issue.· The presumption which arises from the fact that the parties went to trial without a determination upon the demurrer is that the demurrer was waived. Basey v. Gallagher, 20 Wall. 670. And the lack of a pleading maybe disregarded, or its previ01,lS existence and loss may be presumed, according to the circumstances, where the conduct of the parties has been such as to render that course necessary, in the appellate court, in order to do justice between them. The Georgia, 7 Wall. 32; Fretz v. Stover, 22 Wall. 198; Boogher v. Insurance Co., 103 U. S. 90. Upon the facts which the evidence tended to prove (that is to say, that, the plaintiff had pur· chased his ticket, and was at the station, awaiting the arrival of his train, expected shortly to arrive), there could be no doubt that.he was entitled to the rights of a passenger, and if, without negligence or carelessness, he went out upon the platform for the purpose of taking what he supposed was the train by which he was to travel, the railroad company was bound to take all due precaution to protect him from injury. Shear. & R. Neg. (2d Ed.) § 262. We do not understand that the company disputes this general proposition. The assignments of error which are discussed in the briefs of coun· sel, and were argued at the bar, are these:
"(3) The court erred In refusing the request to direct a verdict tor the defendant (4) The court erred In charging the jury that there was some proof tending to show that It was frequent or customary to discharge the mail in such a way and at such places as that passengers, belrig lawfully on the platform, would be hurt."
The fourth assignment appears to be a specification of a particular ground or reason advanced in support of the third. With reApect to the proof referred to by the fourth assignment of errors, it appears
SOUTHERN RY. CO. V. RHODES.
trom the bill of exceptions that there was proof undoubtedly sufficient that the plaintiff received an injury substantially such as is described in the declaration, and at the place and under the circumstances stated in the declaration, unless it be with reference to the particular subject to which the challenge of the defendant in the court below was directed; that is to say, whether there was sufficient proof to justify the submission to the jury of the question as to whether it was frequent or customary to discharge the mail upon the platform in such a way and at such places as that passengers, being lawfully on the platform, would be hurt. It appears that the mail pouch, at the time of the accident, and prior thereto, was thrown off by an employe of the post-office department of the United States, who was working upder rules and regulations, one of which was as follows:
"Under no circumstances shall the mail be thrown on the station platform from the train in motion, except by special instruction of the division superintendent. The utmost care should be taken in the deliveries to avoid injuries to persons or property."
And it was proven that there was no instruction from the division l'luperintendent modifying this rule. The railroad company had no direct control over the matter; the carriage of the mail being under contract with the United States, and subject to the control of the government officials and employes in respect to the. manner of delivering the mail pouch from the,train. However, the duty to its passen· gers remained with the railroad company. if there was a dangerous practice of the kind alleged, and the company had notice of it, to take such steps as were necesl'lary and appropriate to inform the department of any breach of its contract, and the violation of the department's rules which resulted in danger to passengers, and to take such further steps as were necessary to prevent the continuance of the practice. It is true that such a duty is not expressly charged in the declaration, and is only to be implied from the facts therein alleged; but no question upon that point, or in respect to any variance from the declaration, was raised in the court below, or is raised by the assignment of errors here. If the practice existed, and was not stopped, it was the duty of the railroad company, on getting notice of it, to givE" warning of the danger to its passengers. We come now to the subject upon which the contest was made in the court below, and is now involved by the assignment of errors. The mail grab was a structure designed for the purpose of taking in the mail pouch when trains passed the station without stopping, and had no relation to the delivery of the mail which was destined for that place. The delivery might be made at any convenient point where it would not be attended with danger to passengers or others who might lawfully be there. In order to affect the railway company with the charge of negligence, it was necessary to prove that the company had notice of a practice of the postal employes to throw off the mail pouch at a place where it was dangerous. This notice might be express, or it might be implied from a long continuance of such practice. There was no proof of express notice. The plaintiff attempted to prove that it had been so long customary to throw off the mail so near to the depot as to endanger passengers that the railway company ought
of; it., For 1?urpose he; f#o witof wae B. M. Lawson,who testified that he'lived forts.everal :y-earsat SherrninI Heights,nof far from the, depot where Rhodes received his injury; that he had been at the depot, and noticed the throwing 9,ffof the mails at that station, and that it was customary run by and throw off the mails there; thathe used for the'" to goovt'r there someeveniIigs, and watch the depot, at times when the oper'atorhad gone to supper,and whep trains had passed he had s<Jtnetimeen'Oticedthe deliveryof themail by throwing it off; that he liad seen it If:hl'own off several times,arid had noticed the occurrence ever since he ,liad1been there, which was about eight years; that "sometimes they';threw it off at the regular place (at the mail grab), and sometimes they threw it off between the mail grab and the depot. throw it off at the mail grab." He further tesThey did not tified that he did not observe any notice, posted at the depot, giving warning to persons to look out for mail sacks or anything else thrown from the train. Another witness produced by him was So C. Lawson, wlio:festified that he had lived at Sherman Heights for seven years; th,at, knew soniething abou(how mail was delivered from thetrains;tJ1il.Ht was thrown off all the way from the mail grab down to depot; that he saw this frequently; that he hadsee,niHbrown off in the sitting-toom door, but did not know how lohg'be'flore; that had seen it thrown otI,a:dozen between' thedepotatid the mail grab"; tbathe never observed any notice posted there, giving warning abdut tb.email sacks being tlit'own off; that there w;as:ntille; he had been around there very often, 'and was at tbe, depot aJIriostevery day when thattrahi: came in, and saw tpe mail thrown, off;:aMthat that was the CUstom of delivering the mails. This was aHtlteevidence pr,oduced in supp()rt ?f tlie 'plaintiff's aver: ment'thl\t theeustdtn of: delivering in a'dal)gerou,s way had andfOJ,' so liong ;a'tiIne that the l'ilflway comprlny ought to have' known'it; ,time of the acddent. '" The testimony' of B. M.. Lawsdii' was; 'in,: substanee; that he bad' on: several occasions seen the between the ma'il grab and the depot., But was nothing in his testimony tending'to show that this was impx:oper, or attended wit\l dfll)ger to anyone; ,The testbiroriy of S.; C; : !Bufhefail$)to'"sfate when the kcls ,'It was on the plaintiff to lsMw tliat theY' had .dcc:Nrtred ,sntncI¢I1tly lorig"befdre the accident to :presumption that the' hitlway i company, had knowledge Mif.. "It 'the testinlony tMt such, a such ,acts as 1\;eredangerous to: passengedHufcould be said to make iifcustoirtary, anll for a period sJdftyciently 'lbng':W charge! tlie defendant l\\rjth' notice.iBe speaks of he S'liw'the.' mail poric'lj:, thr<Jwnirihf tM door; but wh-eh'it Wll,I'l, .' He does 'not state, Where' between the lria:jl'grab:atitl 'the'tlepot'l).e had th'ertigjI thrown off,andfor aught tbathe' "With'tM 'sit,tgIee':Xceptiori'Of the occasion when he says he saw tHe mall, irito tht!door, of the depot, be does not state,'DdrHHtother"vIse shown, thafthe localities where the mail fell were 'Such as' were used by passengers. We think 'this evidence was
GREEN V. UNDERWOOD.
not sufficient to justify a finding that a custom of· throwing off the mail at that station at a place where it was dangerous to passengers had existed for a period sufficiently long prior to the accident as that the defendant was chargeable with notice of it. 'l'he court was reo quested by the counsel to instruct the jury to find a verdict for the defendant. For the error in refusing to give this instruction, the judgment must be reversed, with costs, and a new trial awarded.
(ClrciJlt Court of· Appeals, Eighth CirCUit. Nos. 1,000, 1,028.
March 21, 1898.)
ABATEMENT-Pr,EA OF LIS PENDENS.
In a court of chancery, where the rules of equity possess such flexlblllty as tq permit the court to proceed, ex requo etbono, to preserve the rights of the parties under certain contingencies, it will not, upon the plea of lis pendens, dismiss the suit in the federal court, but will simply postpone the hearing until the determination of the suit in the state court. A plea setting up the pendency of an earlier action between the same parties in a st'lte court, and alleging that the question of liability of defendant to plaintiff by reason of the matters alleged in the complaint, and the extent thereof, are In issue In said cause, but not stating whether the suit Is one at law or in equity, whether the relief sought is the same, nor what Is the state of the pleadings, Is defective in substance, and bad.
3. I::lAME. As a plea of Us pendens Is wholly technical, does not go to the merits of the cause, and is intended to stay the hand of justice in a court having. jurisdiction over the parties and the subject-matter, the party interposing such a plea must bring himself within the strictest rules of correct pleading. 4. PLEADING-LIS PENDENS-DEMUHRER-LEAVE '1'0 PLEAD OVER-COT,OltADO. Code Civ. Proc. Colo. § 55, makes the pendency of another suit a grolmd of demurrer, when the fact appears in the petition; and section 59 provides that, if the fact does not so appear, it may be raised by answer. ld. § 4, p. 73 (Sess. Laws 1889), provides that "when a demurrer Is decided the court · · · may proceed to final judgment thereon in favor of the successful party unless the unsuccessful party shall piead over or amend on such terms as shall be just, and the court or judge may fix the time for pleading over and filing the amended pleadings, and if the same be not tiled within the time so fixed, judgment by default may be entered as in other cases." Held, that the court, on sust'lining a demurrer, is only authorized to proceed to final judgment thereon when the unsuccessful party declines or fails to plead over. 5. APPEAL AND ERROR-COUNTERCLATM. Where a dismissal of the original petition does not carry with It the counterclaim, the cross complainant, on failure of the other party to plead to his counterclaim, should ask for judgment as for want of an answer, and the court may refuse to order the cross defendant "to plead to his counterclaim." 6. SAME. A writ of error is not the appropriate remedy where a court refuses to proceed to hear and determine a cause, and therefore does not lie from a refusal of the court to order a cross defendant to, plead to a counterclaim.
In Error to the Circuit Court of the. United States for the District of Colorado.